The Calcutta High Court recently clarified that an attempt by a man to grope a minor girl's breast while intoxicated does not qualify as attempted rape under the Protection of Children from Sexual Offences (POCSO) Act. Instead, it falls under the category of aggravated sexual assault due to the absence of any penetrative act.
"We have carefully gone through the evidence recorded by the learned Trial Court. The evidence of the victim girl and the medical examination report prima facie do not indicate that there was any penetration or rape committed by the petitioner on the victim girl nor that he attempted to penetrate."
The case involved an appeal filed by the petitioner, Zomangaih @ Zohmangaiha, seeking suspension of his sentence. He had been convicted under Section 10 of the POCSO Act, along with Sections 448, 376(2)(c), and 511 of the Indian Penal Code (IPC). The trial court sentenced him to 12 years of rigorous imprisonment and imposed a fine of Rs. 50,000.
The petitioner maintained that he was falsely implicated. He argued that even if the statements of the victim, medical reports, and testimonies of other witnesses were accepted at face value, they did not support a charge of attempted rape.
During the hearing, the petitioner's counsel stressed that penetration is a necessary element to constitute the offence of rape under Section 376 of the IPC. Without penetration, it cannot be treated as rape or even attempted rape. The counsel further submitted,
At the highest, the prosecution may be able to make out a case of aggravated sexual assault under Section 10 of the POCSO Act, for which the prescribed punishment is imprisonment between five and seven years.
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It was also highlighted before the Court that the petitioner had already spent around two years and four months in custody. Given the unlikely prospect of an early hearing of the appeal, it was argued that he deserved to be granted bail.
After hearing both sides, the Court concluded that the evidence, particularly the victim’s testimony, pointed towards an attempt to grope her breasts but did not show any signs of penetration. Therefore, the incident would amount to aggravated sexual assault rather than attempted rape under the law.
The Division Bench remarked,
"The evidence suggests an attempt of aggravated sexual assault but does not prima facie indicate an offence of attempted rape."
Taking into account the period already spent in custody and the nature of the allegations, the Court decided to grant bail to the petitioner.
The case has been recorded as Zomangaih @ Zohmangaiha vs State of West Bengal, Case No: CRA (DB) 16 of 2025.
